Munna vs Girish and Another

Alok Sharma, J.—This second appeal has been filed against the judgment and decree dated 08.09.2008, passed by the learned Additional District Judge, Fast Track No. 1, Dholpur whereby the appellant''s regular first appeal against the judgment and decree dated 31.01.2006, passed by the learned Civil Judge (Jr. Div.), Dholpur, has been dismissed. The brief facts of the case are that respondent-plaintiff (hereinafter ''the plaintiff) filed a civil suit for permanent injunction against the original defendant Chimman, the father of the appellant-defendant Munna, (hereinafter ''the defendant'') in the Court of Civil Judge (Jr. Div.), Dholpur. It was averred in the plaint that the plaintiff and his brother Dinender Kumar @ Dinesh Kumar (respondent No. 2) purchased a parcel of land ad measuring 125 X 25 ft. situate in village Mania from Sunder Singh and Ramswaroop etc. vide registered sale-deed dated 24.11.1964. Subsequently, after getting permission from the Gram Panchayat, Mania, the plaintiff constructed two shops on the western side of the said land, two rooms back onto of the shops and a ''bramda'' as well as a ''chabutra'' in front of the shops. It was stated that there had been a public way (rasta) towards west side of the said plaintiff''s land, but in the year 1969 Chimman, the father of the defendant first encroached on part of the ''rasta'' and constructed two shops thereon. Thereupon the Gram Panchayat, Mania, served a notice upon Chimman with regard to his encroachment and illegal construction, whereupon he admitted that he had raised construction by encroaching upon some part of the kharanja of the Gram Panchayat. It was stated that owing to fresh encroachment and unauthorised construction, the 12 wide way towards west side of the plaintiffs land, used since about the last 30 years, was being obstructed. As on 05.01.1995 the defendant had again unlawfully dug a foundation on the said 12'' way blocking the plaintiff''s access to his property and was in the process of making constructions afresh on the disputed land, a cause of action had arisen. On the aforesaid cause of action, the plaintiff prayed in the suit that the defendant be restrained by a decree of permanent injunction from raising any construction on the disputed land.

The defendant filed a written statement of denial and stated that the plaintiff and his brother did not get any permission from the concerned authority for constructing their shops. He also denied the allegation of having earlier raised or further intending to raise any construction on the public way. He further denied that either the Gram Panchayat had served any notice upon him on the issue of obstructing a public way, or he had earlier admitted the fact of having raised any construction by encroaching upon any part of kharanja of the Gram Panchayat. It was stated that no order was passed for his removal from alleged encroached areas. It was further stated that between the northern corner of the chabutra of the plaintiff and the house of one Madan Lal, the existing way of only 4'' wide, whereas it was 5 wide between the southern corner of the chabutra of the plaintiff and his property & the properties of Munshi Lal and Ram Prakash. It was stated that there was no obstruction in the public way as alleged. The defendant also denied the fact that there existed 12'' wide public way (rasta) towards west side of the property of the plaintiff. He also denied the allegation of digging any foundation or raising any construction on the land of the public way ownership whereof vested with the Panchayat.

On the pleadings of the parties, the learned Civil Judge framed four issues, which are as under:

In support of his case, the plaintiff got examined himself as PW-1, Devi Charan as PW-2, & Radheshyam as PW-3. The defendant got examined himself as DW-1 and Siya Ram as DW-2 in defence.

After hearing the parties, the learned Civil Judge, decided issue No. 1 in favour of the plaintiff and issue Nos. 2 & 3 in against the defendant and decreed the plaintiff''s suit vide judgment dated 31.01.2006 restraining any construction work on the public way shown in red colour in the map annexed to the plaint such that the plaintiff could access his shops etc. Aggrieved of the judgment and decree dated 31.01.2006, the defendant filed an appeal before the learned District Judge, Dholpur. The matter however, on transfer, came to be heard by the Court of learned Additional District Judge, Fast Track No. 1, Dholpur. The learned Additional District Judge, vide his impugned judgment and decree dated 08.09.2008 dismissed the appeal and upheld the judgment and decree dated 31.01.2006. Hence this second appeal before this Court.

Heard the counsel for the defendant and perused the impugned judgments and decrees dated 31.01.2006 and 08.09.2008.

The learned courts below have held that from the perusal of Exhibit-3 (letter No. 76 dated 08.02.1971 sent by Gram Panchayat to SHO, Police Station Mania) it was established that the defendant Chimman was served with a notice with regard to his illegal construction upon the kharanja of the Gram Panchayat. In the statement before the Gram Panchayat, Chimman had admitted the aforesaid fact of demolishing kharanja and digging of a foundation. The courts below from the aforesaid proved documents before it that Chimman demolished the kharanja and dug a foundation for construction of a wall on the disputed land. It was also found that the defendants could not establish ownership over the disputed land and had not submitted any documents with regard to ownership over the disputed way. Further from the report of the Local Commissioner approached by the trial court it was established that aside of the disputed way, there was no other way for the plaintiff to access his property. The courts from the perusal of exhibit-A-2 (permission given by Gram Panchayat Mania) and exhibit-A-3 (the map), concluded that the disputed land was a public way on which no construction could be made. Issue No. 1 was decided in favour of the plaintiff and against the defendant.

The learned courts below further found that the burden of proof on issue Nos. 2 & 3 was on the defendant and the defendant did not produce any evidence to discharge their burden. The trial court thus decided the issue Nos. 2 & 3 against the defendant. The learned appellant court upheld the judgment and decree dated 31.01.2006 and dismissed the regular first appeal there against by a detailed and well considered order negating the grounds set up by the defendant.

Mr. Raj Kumar Gaur in the present second appeal u/s 100 CPC has attempted to re-agitat questions of fact concluded against the defendant by the concurrent findings of fact of the two courts below. He has submitted that albeit a public way as claimed by the plaintiff did indeed exist, it was merely 4''X 5'' in width and not 12'' in width as claimed by the plaintiff and found by the courts below. His submissions is that the finding of the courts below about the public way (rasta) in issue being 12 wide is a perverse finding unsupported by any evidence and hence liable to be quashed and set aside.

I have considered the submissions of the counsel for the defendant and find no force therein. The jurisdiction of this Court u/s 100 CPC is a statutorily limited jurisdiction confined to substantial questions of law. A question of law ordinarily arises on an issue of construction of statute, or a document or title and in the context of a mixed question of law and fact, where the legal effect of facts found is under consideration. None of the aforesaid situations obtains in the facts of the present case. Both the trial court and the learned appellate court in the instant case have decided the case before them only on question of fact based on pleadings and evidence.

No question of law arises in the present case. The conclusion of the courts below that the construction sought to be made by the defendant was on the Panchayat land was based on inferential facts founded upon the primary and basic fact that the defendant had not been able to establish that he had any semblance of right, title or interest over the land in dispute and further that the documents exhibits-3, A-2, A-3 before the trial court established that the Panchayat concerned had earlier taken proceedings against the defendant for removal of his encroachment over the public way and construction thereon. It is difficult to understand as to how a substantial question of law can arise in the facts of the present case. On the examination of the impugned orders, it is apparent that the only point on which the controversy between the parties centered was as to whether the defendant had any right to encroach and make construction on the parcel of land not admittedly his own, but part of public way. It was the defendant''s own case that the public way did exist, but it was his contention that its width is 4''X 5'' and not 12'' as claimed by the plaintiff. The issue as sought to be agitated before this Court with regard to the width of the public way is obviously an issue of fact and interestingly the said issue was not formulated before the trial court or before the appellate court. For this reason also this cannot be allowed in this second appeal u/s 100 CPC.

The Hon''ble Supreme Court in the case of Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, held that the concurrent findings of facts even if erroneous without anything more cannot be disturbed by the High Court in exercise of the powers u/s 100 CPC. This proposition is well established. Findings of fact are founded on appreciation of evidence which is the province of the trial court and the first appellate court. There is not even an iota of case that any legal principle has been wrongly invoked by the courts below or that they have wrongly interpreted a statutory provision or a document. No question of law is even remotely made out. The second appeal is without force and is consequently dismissed. Stay application needs no address in view of the appeal being dismissed.